|
UNIVERSITY Of STATE Of HAITI
ECONOMIC SCIENCE AND FACULTY OF LAW
PORT-AU-PRINCE, HAITI
DES REGLEMENTS INTERIEURS POUR LE PARLEMENT
HAITIEN
RULES OF PROCEDURE FOR
HAITIAN PARLIAMENT
Memory presented and supported by the
student :
Gineaud LOUIS
For obtaining the rank of bachelor of law.
Under the direction of the Professor Henri Mr.
DORLEANS
June 1998
Promotion 1991-1995
TABLES OF CONTENT
Pages
List Abbreviations vii
Foreword viii
Introduction 1
First Part : Contributions of the rules of procedure in the
organization and the operation of the Parliament 5
Chapter First : Roles of the rules of procedure in the
Parliamentary Assemblies 6
Section 1. Genesis and Evolution of the parliamentary
Assemblies 6
Saw first parliamentary Assemblies 7
has) Assemblies of Athens 7
b) The Romain Senate 8
c) English Parliament 7
D) - the French French National Assembly under Ancien
Régime 9
B Modern parliamentary Assemblies 11
has) Parliamentary Assemblies in the parliamentary system
11
b) The parliamentary Parliament in the American presidential
mode 15
c) the parliamentary Parliament in the Mixed Modes 16
Section 2. Basic rules for the operation of a Parliament 19
A- Some general considerations on the rules of procedure 19
a) The draft Regulation
19
1. The committee of preparation 19
2. Development and texture of the project 20
3. The report/ratio with the Plenary assembly 20
b) The entry into force of the payment 20
1. The vote of the payment 20
2. Adoption of the payment 20
3. Publication of the payment 21
c) The legal authenticity of the payment 21
1. The value for the Parliament 21
2. The place of the payment in the hierarchy of the standards
21
B- Contents of the Rules of procedure 23
a) Rules on the organization interns Parliament 23
1. Bodies of the Parliament 23
1.1 The office of the parliamentary Parliament 23
1.2 Parliamentary commitees 25
1.3 Parliamentary groups 26
1.4 Parliamentary personnel 26
2. The parliamentary discipline 27
2.1. The parliamentary statute 27
2.2. Meetings 28
2.3 Quorum 28
2.4 Sanctions 28
b) Rules on the procedure 29
1. Presentation of the law 29
2. The initiative of the law 29
3. The examination of the law 29
4. The debate and adoption of the law 30
Chapter II: Haitian Parliament and its Payments 31
Section 1. Parliamentary Structures in Haiti 31
A- The organization of the Parliament in the past 31
) the monocameralism in Haiti has 31
1. Organization of the Legislative power in the Haitian
monocameralism 32
1.1 The Senate of 1806 to 1816 32
1.2 The House of Commons of 1964 to 1986 33
2. Relationship between the Legislature and the Executive
33
2.1 Reports/ratios under the Republic of Pétion 33
2.2 Reports/ratios under the mode of Duvalier 34
b) Haitian bicameral system 35
1. Bicameral Legislative power 35
1.1 Composition 35
1.2 Elections and Mandates 36
1.3 Attributions and operation 36
2. Relations between the Parliament and the Governments
37
2.1 Legislative power with the profit of the
Executive 37
B Parliament in comparison with the Constitution of 1987
38
has) Haitian Legislative power 38
1. House of Commons 38
1.1 Elections and Mandates 38
1.2 Conditions of eligibility 39
2. Senate of the Republic 39
2.1 Elections and Mandates 40
2.2 Conditions of eligibility 40
b) Exercise of the Legislative power 40
1. House of Commons 41
2. Senate of the Republic 41
3. Of the French National Assembly 42
Section 2. Rules of procedure of the Parliament since 1987
43
A- First payments 43
a) Payments of the Senate 43
1. The framework of reference of the Senate of the Republic
44
2. Practices of the senatorial assembly 44
b) Payments of the House of Commons 44
1. The framework of reference of the payments
interiors of the House of Commons 45
2. The payment of the deputies of the 45ème Legislature
45
B them payments of the 46ème Legislature 47
has) The law of June 1996 carrying new
rules of procedure of the Senate 47
1. Innovations brought to the Senate by the text of 1996
48
1.1 Senatorial institution 48
1.2 Privileges of the Senators 48
1.3 Conference of the presidents 49
1.4 Parliamentary groups 49
1.5 Commissions 49
2. Withdrawals or abrogations of the rules of procedure of the
Senate 50
2.1 Employees of the Senate 51
2.2 Delegations 51
2.3 Mode of voting 51
b) The interior draft Regulation of the House of Commons 51
1. Innovations in the organization and it
operation of the House of Commons 52
1.1 Bodies of the House of Commons 52
1.2 Relationship with the Executive 52
1.3 The technical council of framing 53
1.4 Office of the Deputy 53
Second Part: Payments adapted to
requirements of the Haitian political system 55
Chapter I: Considerations on the problems arising from the
imperfections
and gaps of the rules of procedure of the 46ème
Legislature 56 Section 1. Problems encountered in
working procedure Haitian Parliament 56
A- Weaknesses in the internal structures 57
a) Faulty operation of the bodies of the Parliament 57
1. The office of the Parliament 58
2. Standing committees 58
3. The conference of the presidents 59
b) Inexistence of certain fundamental structures 60
1. Commission of conciliation 61
2. Commission of press and public relations 61
B Problems encountered in the legislative procedure 62
a) Difficulties in the application of the rules of procedure
63
b) Problems in the operation of the Parliament 64
1. Meetings of the Parliament 64
2. The vote 65
3. Quorum 66
4. Validity of the vote of the Parliament 66
Section 2. Problems encountered in the relations
between the Parliament and the other Capacities 67
The management of the relationship between the Legislature
and the Executive has 68
a) The ratification of the Prime Minister 68
1o) The case of Ericq PIERRE 69
2o) The case of Herve DENIS 69
b) The control of the governmental action 70
1o) Questions 71
2o) Interpellations 71
3o) Preliminary investigations 72
c) The definition of the rules of protocol and precedence
72
B- The management of the relationship between the Legislature
and the Jurisdictional Capacity 73
a) Legislative power and Supreme court of appeal 73
b) Legislative power and Higher Court
accounts and Administrative Dispute 74
Chapter II: A new approach of the organization of
Haitian legislative power 77
Section 1. An organization by payments 78
A- Payments taking account of Haitian realities better 78
a) Contents of an ideal text 78
b) Contents of a text adapted to Haiti 80
B-of the payments holding count of the Haitian political
system better 83
a) Constitutional constraints of the Haitian political system
83
b) Payments adapted to the constitutional constraints 85
Section 2. An organization by the parliamentary law 88
A- Advantages of a parliamentary law 89
a) The legal authenticity of a parliamentary law 89
b) Extent of the law compared to the payments 89
B Outline on the contents of a parliamentary law 90
has) Questions relating to the interparliamentary
relations 91
b) Questions relating to the relations between the
Parliament
and Executive power 93
Conclusion 96
Bibliography 99
List Abbreviations
BPOPL : Parliamentary block Political Organization Lavalas
STOCK : The Provisional Electoral Council
GPI : Group Independent Parlementaire
FDSE : Economic Science and Faculty of Law
FDSEG : And Economic Science Faculty of Law of
Gonaïves
L.G.D.J : Bookstore General of Right and Jurisprudence
UNDP : Program of the United Nations for the Development
P.U.F : University presses of France
U.S.A : The United States of America
USAID : American agency for the Development International
FOREWORD
During our cycle of studies in Legal Sciences to the Economic
Science and Faculty of Law, we planned to prepare a subject on the Humans right
and Civic Education in Haiti. But in May 1996, we were called at the Office of
the Prime Minister like In charge of Mission to the legislative businesses. It
is for this reason that we had taken part in a Legislative Workshop of
Reflection Executive, under the patronage of the UNDP and the USAID.
We were amazed in the way in which the Canadian, Belgian,
French Members of Parliament... exposed with ease their political systems and
their parliamentary procedures. All was well arranged so that the Capacities
maintain the harmonious reports/ratios. While, the Haitian Representatives were
in the embarrassment to approach the current situation because they did not get
along on the fundamental and elementary questions relating to the relationship
between the Legislative power and the Executive power in the political system
established by the constitution of 1987.
Noting these difficulties, we decided to rather choose to
consider the importance of the rules of procedure in the organization and the
operation of the Haitian Parliament.
The Parliament has a dominating role in the Haitian democratic
process. It is him which can make counterweight with the executive power. As we
believe as it is convenient to provide lawful and legal foundations for a
better management of the exercise of the legislative power.
We claim by no means to present a perfect work. The
difficulties in the research tasks for an adequate documentation failed to
discourage us. This memory is the result of many efforts and sacrifices which
we agreed in order to present a work useful to any person interested in the
exercise of the Haitian legislative power in the new political system of the
constitution of 1987.
Without the contest and the assistance of other people we
would be far from achieving our goal. We want to testify our gratitudes towards
our director to memory, the honourable professor Henri Mr. DORLEANS, who placed
at our disposal his know-how and his critical spirit. It is the occasion to
thank our professors for the FDSE which, under difficult conditions, knew to
make watch of professionalism in all objectivity to guide us on the path of the
law and the law.
We thank grandpa Louis Honore PIERRE and Me Alix RICHARD who
much encouraged us and supported, without forgetting to Me Philippe CANTAVE who
accompanied us in our research.
We also thank our tender mother, Mrs. Branche LOUIS, born
Marie Viergine CHRISTMAS who sacrificed herself so that we are what we are
today. We cannot forget our brothers: Guy Robert, Roosevelt and Jean
Patrick.
Lastly, we dedicate this memory to all the Members of
Parliament of the 46ème Législature of the Haitian Parliament,
like with any person eager to become member of the Haitian Legislative Body.
INTRODUCTION
The absence of a democratic culture in Haiti and the
originality of the political system established by the constitution of 1987
make very difficult the operation of the Parliament. Who worse is, the
legislative power cannot claim to have succeeded in giving itself a particular
statute enabling him to fill with effectiveness and coherence its tasks
constitutional.
Today the country is with its third Legislature under the
aegis of the Constitution of 1987. One of the fundamental problems of the
Haitian Parliament remains the question of the rules of procedure. Any
organized structure needs a minimal framework for its correct operation. It is
in its devices that all the principles are registered, the standards, the
procedures to be followed for the harmonization of the work of the
institution.
One of the first tasks of any institution as the Parliament is
to obtain rules of procedure. At the fact, the 44ème Législature
sat only for five (5) months and did not leave an acceptable payment taking
into account the controversies raised around its political legitimacy. The
45ème, for its part, worked out a text, but the political economic
situation of then had constrained the members of Parliament not to apply them.
To defend oneself, they supported on many occasions that the Coup d'etat of
1991 had created a special situation and that it was necessary to direct by
special decisions. The rules of procedure, in fact, were not respected by the
45ème Législature.
The 46ème Legislature, as for it, profits in one way or
another from a political stability which not only enables him to have its rules
of procedure but also to apply them. However, we approach towards the end this
Legislature and the Parliament functions on the basis of payment of the
45ème Législature with all its gaps and its weaknesses.
The inexistence of rules of procedure to the Haitian
Parliament or their nonapplication can handicap his administrative organization
and to carry damage to the exercise of the legislative power such defines by
the Constitution of 1987. This creates a disorder in the organization of
parliamentary work and prevents the State from fulfilling with effectiveness
the missions which are assigned to him by the Constitution and the laws of the
Republic.
The hesitations, the improvisations, indiscipline, the
inconsistency noted in practice parliamentary in Haiti since 1988 constitute
the principal motivation of our questioning on the importance of the rules of
procedure. Fault of those the Parliament will not be able to answer its mission
suitably first: to legislate.
The weak assessment of parliamentary work as well as the
imperfections already recorded in the legislative production invite us to study
the role and the importance of the rules of procedure in the interparliamentary
relations and the relationship between the Executive power and the Legislative
power.
For the realization of our work we regarded as starting
assumptions that :
- the absence or the inadequacy of the rules of procedure
harms parliamentary work and does not facilitate the resolution of the
conflicts within the Parliament.
- the inefficiency of parliamentary work and the variations
recorded in the legislative procedures are caused by the absence of rules of
procedure or their nonapplication.
- the inadequacy with the political system recommended by the
Constitution of 1987 is a major handicap for the future of the democratic
process.
These assumptions will be studied thoroughly by considering
operation, the organization of the foreign Parliaments and that of the Republic
of Haiti. Thus, our work includes/understands two parts. The first consists in
the presentation of a general framework of institutionalization of the
parliamentary Assemblies and fundamental elements of any rules of procedure:
(Chapter First).
Another very particular consideration will be made on the
various Haitian monocamérales and bicameral parliamentary Assemblies,
like on the rules of procedure of the three (3) last Legislatures: (Chapter
second).
These two chapters are divided into two sections which
correspond directly to the choice that we had made in the title of our first
part, namely; «Contributions of the rules of procedure in the
organization and the operation of the Parliament».
The second part of this memory will relate to the urgency to
have: «Of the payments adapted to the requirements of the
Haitian political system». Actually, the Constitution of
1987 gives rise to a new political régime where a great number of
capacities of the Executive is transferred to the Legislature. However, since
1988 Nos three (3) Legislatures did not know to give means for the exercise of
the legislative power, amongst other things of rules and suitable procedures.
The critical analysis of the payments of the 46ème
Législature reveals notorious gaps and weaknesses compromising the
correct operation of the Parliament. The questions relating to the bodies of
the Parliament, the legislative procedures, the relationship with the other
capacities... will be treated in the two sections of the first chapter of the
second part.
The second chapter of this part will tackle the question of
the operation of the 46ème Législature from the point of view of
recasting of the rules of procedure in order to adapt them to the political
system recommended by the Constitution of 1987 by putting in report/ratio
Haitian realities with the constitutional constraints. It will also consider
the parliamentary law as tallies institutional of the legislative power being
able to tackle any question which escapes the field from the rules of
procedure.
We used several methods for the realization of our work. In
the first part we combined the historical method with the systemic method.
While in the second part we proceeded by an analytical and comparative
approach. All shows that the Haitian Parliament is not as well as possible of
its organization and its operation. Too many variations were raised between the
Haitian Parliament and the other Parliaments which evolve/move in the system of
representative democracy.
FIRST PART:
CONTRIBUTIONS OF the RULES OF PROCEDURE IN the
ORGANIZATION AND the OPERATION OF the PARLIAMENT
Chapter first: Role of the Rules of procedure in the
Parliamentary Assemblies
The theory of the separation of the capacities entrusts the
exercise of the legislative function to a body distinct from the Executive. The
Parliament is invested national sovereignty. It exerts a double function: that
of legislative Parliament and that of Controlling authority of the executive
power.
In this chapter we are interested to make an evolutionary
consideration of the Assemblies of the people at the Parliament and we will
show the importance of the rules in the organization and the operation of the
parliamentary Assemblies.
Section 1. Genesis and Evolution of the parliamentary
Assemblies
The parliamentary assembly is codépositaire national
sovereignty. How it was established among the Nations ? Which are its
capacities? Which is thus its place in the contemporary democratic system? Here
are relevant questions and others still that this section will try to
approach.
A- Outline of the first parliamentary
Assemblies
a) Assemblies of Athens
From all the old Republics, Athens perhaps considered as most
democratic by its mode of sociopolitic organization. In Athens, there were not
true legislative institutions. The legislative power was delegated to the
people by the means of the Assemblies: the people, joining together all the
social components, deliberated on almost any thing. However the lack of
organization of this capacity led the people to make decisions compromising
with the respect of the basic human rights seen that all that it decided was
not likely of any recourse.
Thus, with the aim of regulate and to limit the power of the
Assemblies, Solon A creates the Learned assembly, a supreme court having the
capacity to hear all the businesses of the people and the role to remark the
laws (1). It then established the Senate. This one had as tasks to prepare the
bills and the other acts on which the people could be called to deliberate. The
creation of the Senate and the Learned assembly, the modification of the
conditions of the exercise of the voting rights which authorized only the old
Athenian citizens to vote in the Assemblies could regulate the capacity of the
people and institutionalize the legislative power in Athens.
________________
1. Mr. D. DALLOZ, Groin: Repertory of legislation,
doctrines and jurisprudence, T. 18th ED. Dalloz, Paris, 1870, p
246
b) The Romain Senate
In ancient Rome the division of the deliberating Assemblies
was done in classes, tribes, centuries, curies... The people treated all the
businesses which one did not fail to subject to him in these Assemblies.
The creation of the Senate by Romulus reinforced the authority
of the legislative Parliament considerably. Its organization, its power, the
statute of its members made of Rome the headlight of the Nations in what milked
with the development of the theory of the separation of the three
capacities.
As of year 625, almost all the social categories are
represented with the Senate. The Senate was renewed every five years and the
Senators were subjected to special laws which regulated the incompatibilities
with their functions as being able of the State. Thus all the power of the
people or all the power of the Assemblies was transferred to the Senate.
c) English Parliament
The political organization of England supported the emergence
of the Parliament, body representative of the assemblies of the people. As of
the beginning, almost all the Counties were represented there. The English
Parliament was divided into two rooms : laic and ecclesiastical pars, and
representatives of the Counties (1).
_______________
1. GICQUEL, Jean: Constitutional law and political
institutions, Paris, ED Montchrestien, 1985, p 184
The feudalism established by William the Conqueror in 1066
influenced the evolution of the Parliament much. In 1265, thanks to the
coalition of the nobility and the middle class against the abuses the royal
capacity, the English instituted the parliamentary capacity. The Parliament
was convened by Edouard Ier in 1295. In 1642 the civil war burst and the
Parliament had to await the advent of Guillaume III with the throne to exert
indeed its functions in a true representative mode (1).
Towards the end of the XVIIème century, the Parliament
intervenes systematically in the walk of the country by the vote of the laws
and the control exerted on the Ministers (2). From 1640-1649, the separation of
the capacities started to become a rule in England. The exercise of the
legislative power is assured completion by the Parliament. Also becomes a
counterweight with the royal power.
d) The French French National Assembly under Ancien
Régime
In France, the Assemblies represented only one weak part of
the population. They were convened since 1302 in order to institute the
representative mode. At the beginning there was not the participation of the
people in the great decisions of the country as we saw in the other old
Republics. The general Assemblies of the nation were convened by the King and
included/understood the Counts, the bishops and the most considerable
authorities of the City.
__________________
1. GICQUEL, Jean: COp. city, p 184
2. DUVERGER, Maurice: Political institutions and
constitutional law, 1 - great political systems, 16th ED. PUF, Paris, coll
THEMIS, 1980, p 48
The irregularity in the operation of the representative
Parliament obliges the King to create the Parliament. With the fact, they are
the representatives of the cities and the villages elected in the primary
Assemblies as deputy which met as an electoral Parliament to elect the Deputies
of the Parliament. The payment of this Parliament was written by the King who
at the same time determines the conditions of eligibility of the Deputies, the
process of the vote, the statute and attributions of the Deputy, etc (1).
The acts of the French Parliament will be determining for the
construction of the representative system : the principle of the
separation of the capacities of the State was established. The legislative
power is exerted by the Parliament and the King does not have on him any
capacity of dissolution.
Of all that precedes, we see that the Assemblies of the people
in the old Republics played an important part in the management of the public
thing. Their lights guided rightly the political economists and the
philosophers in the definition and the development of a new called democratic
mode: parliamentary system. In this new political system their role became more
dominating.
____________
1. Mr. D. Dalloz, Groin: COp, quoted p 257
B- Modern Parliamentary Assemblies
The principle of the separation of the capacities was
highlighted in all the modern constitutions. The legislative power is exerted
exclusively by the parliamentary Assemblies. However, the characteristics of
the parliamentary Assemblies are fixed with the mode in which they evolve/move.
Thus in the parliamentary systems, the mixed mode presidentialist and modes,
the parliamentary Parliament is against being able.
a) Parliamentary Assemblies in the parliamentary
system
The parliamentary system answers the need for the liberal
democracy for developing. It recommends the separation of the executive power
in two elements: Head of the State and Chef of the Government. The
parliamentary perhaps monocamérale or bicameral Parliament. What
characterizes this mode, it is the way in which the relationship between the
executive power and the legislative power is organized.
The parliamentary systems as from the XIXème century
evolved/moved according to two tendencies:
1o) The Dualism where the Executive has a right of
dissolution on the Parliament, and contrary the government is not responsible
before the Parliament;
2o) Monisme recommends a balance between the parliamentary
majority and the government which results from this: the government is
responsible collectively before the Parliament and this one can be dissolves by
the Executive when the government is put in minority by the Room.
Today parliamentarism monist is confirmed more and more in
almost all the States of Europe. However, the distribution of the capacities
between the Head of the State and the Government specify the nature of the
parliamentary system. It is the same for the responsibility for the government
in front of the Head of the State. Let us take some examples : in England,
in Germany, in Canada, with U.S.A, in France, in Italy...
1. The Parliament in the English majority
parliamentary system
The English Parliament results from the majority poll to a
turn. It includes/understands the House of Commons, elected by the direct and
secret vote for all and the House of Lords, aristocratic and created by the
King. The legislative power is exerted exclusively by the Parliament. Its power
does not have terminals, also says one of him : «It can all change,
except a man in a woman».
In England, the Chief of the parliamentary majority becomes
automatically Prime Minister. He chooses his ministers within the Parliament.
All the ministers are thus members of Parliament. However, the ministers have
access only to the room of which they form part.
The Prime Minister has a homogeneous and stable majority at
the Parliament which reinforces its power. But the parliamentary Parliament
does not fulfill only the traditional functions of the legislative power, it
provides also the framework in which the Opposition exerts its role fully. The
Chief of the Opposition of today can become the Chief of the parliamentary
majority of tomorrow (1).
1. DUVERGER, M: COp, city, p 276
Thus the two-party system recommended by England establishes a
concentration of the capacities to the profit of the government which can
resort only to the dissolution of the House of Commons when it is found in
minority.
If dissolution is a means for the Government of making carry
out a renewal of the Room at the time that it judges most favorable, the
parliamentary Parliament, in the exercise of her constitutional prerogatives,
remains a permanent controller of the acts of the Executive by the calling into
question of the Government on her policy in front of the House of Commons.
2. The operation of the parliamentary Parliament in
the controlled Democracy of Germany
The German Republic practiced a traditional parliamentary
system in a democracy majority and proportional. The Parliament is composed of
two rooms: the Bundestag which represents the Federation and Bundesrat which
represents the States.
The Deputies are elected at the Bundestag for a four years
mandate to the mixed poll : according to the principle of the
proportionality, the voters have two votes on the ballot paper (1). The half of
the Deputies are elected with the majority poll with a turn; and other half on
a list of parties presented for each Land.
________________
1. DUHAMEL, Olivier: Democracies, Paris, ED. Threshold,
1993, p 144
The Parliament is bicameral, there is an unequal division of
the capacity between the Bundestag and Bundesrat. This last does not have any
capacity on the Chancellor and cannot take advantage of its right of veto out
of legislative matter (1). The responsibility for the Government is questioned
only before the Bundestag which gives him its vote of confidence or its motion
of censure (2).
The German parliamentary Parliament grants serious capacities
to the Chancellor who is also the Chief of the parliamentary majority. She
meets as a special Parliament compound partly equal of Deputies of the
Bundestag and the members elected to proportional of the provincial Diets to
elect the President of the Republic.
The legislative function is shared according to a distribution
of competences. Thus Bund holds the exclusive legislation in the matters which
concern the sovereignty of the State; Länder are completely qualified for
the local businesses. However, under the terms of the principle according to
which the federal right breaks the federated right, Bund has a right of veto on
the laws of Länder.
3. The parliamentary Parliament of Canada
Canada is a Federation of provinces. Each province is
controlled according to a parliamentary system. The French National Assembly of
Canada is elected by the vote for all. She is the meeting of all the Deputies
of the Federation.
____________
1. DUVERGER, M: COp, city, p 307
2. DUHAMEL, O: COp, city, p 149
The parliamentary Parliament of Canada is composed of the
French National Assembly and the Lieutenant governor who represents the Crown.
The French National Assembly has a capacity of monitoring on all the acts of
the government. She exerts the legislative power exclusively. The Chief of the
majority party at the Canadian Parliament becomes the Prime Minister and
chooses his ministers within the Parliament.
Canada practices a parliamentary system monist. The Prime
Minister and his government are collectively responsible before the Parliament,
and the Chief of the government can slice by the dissolution of the French
National Assembly.
In the parliamentary system, the parliamentary Parliament
assumes the legislative power in collaboration with the Government which it
itself instituted. The Government is ensured of a stable majority the
Parliament so that it lasts normally during the legislature. The parliamentary
assembly is elected by the citizens. She is guarantor of national sovereignty.
She exerts the legislative power and supervisory powers on the Government.
b) The parliamentary Parliament in the American
presidential mode
The United States of America are the principal example of
definition of the presidential mode. In this system the President is most
important in the distribution of the capacity. The presidential mode of the
United States is devoted since 1787 by the constitution. The president
cumulates the function of Head of State and Chef of Government (1).
____________
1. BURDEAU, George: Constitutional law, 24 E ED. Paris,
Manual coll, L.G.D.J, E.J.A, 1995, p 119
The legislative power is exerted by the Congress made up of
the Room of the Representatives and the Senate. The members of the Room of the
Representatives are elected with the majority poll with only one turn for one
two years duration, while the Senators are elected for six years at a rate of
two representatives per States.
The American Congress is invested important attributions. It
votes the law and the budget in all autonomy. The president holds a right of
veto on the laws which can be overcome only by one vote in the majority of two
thirds in each Room. Thus one qualifies the presidential mode of the United
States like a concentration of the authority for the benefit of the Head of the
State (1). However, the Government is irresponsible and the insoluble
Parliament.
In the presidential mode the Executive is monosépale.
It draws its authority from a popular nomination. For this reason it is
independent of the Parliament which cannot blame its political responsibility
and that of its cabinet. The president and the Parliament assume a all the more
essential collaboration as, elected by the people, they hold both a direct
delegation of national sovereignty.
c) The parliamentary Parliament in the Mixed
Modes
1. The parliamentary Parliament in the system
presidentialist of France
The particular conditions of the attribution of the capacity
and the constraints which the French mode establishes in the relationship
between the legislative power and the executive power oblige us to present it
like a mixed mode.
________________
1. GICQUEL, Jean: COp, city, p 209
The French mode recommends a majority presidentialism. The
government is directed by the Chief of the parliamentary majority. In France
the government is responsible in front of the French National Assembly. However
the mode is asymmetrical. The president can dissolve the French National
Assembly, while this one cannot revoke the president. It is a very powerful
Executive which has weapons to make vote the law under the conditions which are
appropriate to him: the Chief of the government holds a stable majority at the
Parliament.
As aucuns describe the mixed mode of France as being strongest
which is in democracy (1). That is due to wide capacity of the Head of the
State which resorts to the referendum when the government is subordinate,
dissolves the French National Assembly for him and controls the Constitutional
Council by the designation of its members.
2. The parliamentary Parliament in Partitocratique
Parliamentarism of the 1ère Republic Italian
Partitocratie is defined as the reign of the parties, the ones
with the government, the others apart from the government but associated the
development of the policy and the division of the stations (2).
It is a mode which recognizes with the Head of the State
almost same attributions as in a parliamentary system : choice of the
president of the Council which will have to be ratified at the Parliament.
____________
1. DUHAMEL, O: COp, city, p 182
2. Idem, p 198
The parliamentary Parliament is made up of two rooms: the
House of Commons and the Senate. They share same attributions and each one of
them can reverse the Government. The recruitment of one or other is done by the
direct vote for all. The Deputies are elected with the list system to the
representation proportional in each district and the Senators to the uninominal
system and proportional on regional basis.
The Parliament legislates in a system strictly levelling
bicamerist. The two Rooms last same mandate and are renewed jointly, except in
the event of dissolution. The Parliament gives nomination to the government
which is responsible in front of him. It actively controls the acts of the
Executive by the establishment of the commissions. The president of the
Republic can dissolve one of the Rooms or all the Parliament. He is thus
consolidated in his capacity as in a presidential system with American.
3. The parliamentary PARLIAMENT in the Conventional
Mode
This mode made of the right of dissolution a foreign body. It
is an absolute contrast with the parliamentary system. Here the Executive is
subjected and the Legislature is exalté: the government returns account
to the Parliament like the servant to his Master. The Parliament replaces the
Executive in the direction of the public affairs.
All in all, the operation of the parliamentary Assemblies in
the various modes evoked up to now answers the need for the democracy for
developing. However, this development cannot be realistic that in the
definition of a framework of operation adopted by the Assemblies: the payment,
which directs and simplifies parliamentary work in conformity with the
constitution of the State and the political régime that she
recommends.
Section 2. Basic rules for the operation of a
Parliament
In spite of the provisions relating to operation of the
legislative power enacted by the constitutions, it remains obvious that
parliamentary, more effective work and to be well coordinated, must be
regulated by provisions adopted by the Parliament.
A- Some general considerations on the Rules of
procedure.
In his book of constitutional law, George BURDEAU includes the
definition of RUZIE concerning the payment with knowing : «A
resolution by which the Room which voted it fixes the principles of
parliamentary work...» (1). That implies that the absence of rules of
procedure is a handicap with the correct operation of the Parliament. But how
is it presented in the Parliament? When it enters into force and which is its
legal authenticity. Here are three considerations which we will make in the
development of this part.
a) The draft Regulation
1. The Committee of preparation
With the re-entry of a legislature, the Parliament has car to
organize itself. That there is payment or not, the Parliament must stop on a
mode of organization and operation. Thus one creates a commission charged to
write a draft Regulation or to present amendments at the initial payment.
_____________
1. BURDEAU, G: COp, city, p 577
2. Development and texture of the project
The payment is usually presented in the form of a bill. It is
divided into chapters, titles, sections and articles, with a preamble which
expresses the direct ideas.
3. The report/ratio with the Plenary
assembly
The commission charged to work on the payment, presents his
report/ratio at the parliamentary Parliament and asks him to vote the payment
by a resolution. Indeed, the payment is put under discussion as one proceeds
for the bills before their setting to the vote.
b) The entry into force of the payment
1. The Vote
After the recommendations of the preparatory commission of the
payment, the president of the Parliament the met under discussion. The debates
are done on the form and the bottom until the construction of the Parliament.
The payment is voted article by article and the members of the Parliament can
propose amendments of them.
2. Adoption of the payment
The rules of procedure are adopted by the vote in the majority
of the votes cast by the members of the Parliament. However for his amendment
this majority can be specified by the text itself.
3. Publication of the payment
The rules of procedure are not subjected to the will of the
Executive power for its publication. However in certain countries the
Constitutional Council delivers its opinion on its conformity to the
Constitution without what it would not know applicable being, therefore its
publication could not be done. The payment is published in the Official Journal
in the form of resolution like an act of the legislative power.
c) The legal authenticity of the payment
1. The value for the Parliament
The rules of procedure are the paramount element of the
autonomy of the Assemblies. Each Parliament is main of her rules of procedure.
It in a rational way specifies the organization of parliamentary work and its
bodies. It constitutes a framework of reference. The establishment of the rules
of procedure is done in conformity with the constitution and the laws.
2. The place of the payment in the hierarchy of the
standards
The experiment of France under the mode of the constitutional
laws of 1875 had shown that by the means of its payment which a Parliament
could grant of enormous capacities that the constitution had not granted to
him.
Until 1958, each parliamentary Parliament was main of her
payment. July 27, 1947, Vincent Auriol declared in Edouard Herriot:
«I studied the means of
giving satisfaction to the Parliament, unfortunately, the constitution
absolutely does not envisage any means to make repeal the Articles of a
Regulation of a parliamentary Parliament. Neither the French National Assembly,
neither the Government, nor the President of the Republic can intervene in this
matter; each Parliament is main of her payment» (1).
This independence excessive and compromising is thus specified
by article 61 of the French constitution of 1958: «The
payments of the parliamentary Assemblies, before their application, must be
subjected to the constitutional council, which comes to a conclusion about
their conformity with the constitution». Thus the payment
specifies the methods of application of the constitutional provisions. It is
not with the top of the law, on the contrary it is with its service by fixing
the principles of its preparation until its promulgation.
The establishment of the rules of procedure takes account of
the political régime recommended by the Constitution. It is the rampart
of the procedures having to lead to the adoption of an act of the legislative
power. It prevents with the Rooms from dissociating constitutional requirements
and law. Thus the Parliament is obliged to modify her rules of procedure deeply
each time there are of them points of shades with the laws of the country.
____________
1. GICQUEL, Jean: quoted COp, p 863
| 
